Apr 22, 2025 Diane Ring
Regardless of one’s normative perspective, international tax—both its design and its substance—is in great flux. We see this playing out at the United Nations in ongoing debates and maneuvers regarding the UN’s new role in global tax policy making, including during the first week of February 2025, as the UN debated a new framework convention process. Of course, the debate is not just about the UN but rather about the system of global taxation itself, and this debate takes place against a broader backdrop of political and economic history and current tensions beyond tax law. Where global tax policy will land in the medium term, and how much it will change, is not clear. The Global South and the Global North have articulated different visions for where tax policy negotiations should occur (UN, OECD, or other), how those negotiations should be conducted, and what substantive topics should be tackled first.
Frederik Heitmüller’s timely ICTD working paper, Scenarios for Negotiating a UN Framework Convention on International Tax, provides readers a fantastic insight into this unsettled world with an accessible yet sophisticated take on the underlying dynamics. In the face of such momentous uncertainty, with great tax, fiscal and political relevance, governments, taxpayers, researchers, business organizations, media, NGOs, and other actors are all trying to interpret, anticipate, and predict how these dynamics will play out. Not surprisingly, there is a substantial flow of commentary, interpretation, and analysis. (My own co-author and I have contributed to this deluge of material.) But Heitmüller’s January 2025 paper broke through the noise for me. I found it a valuable framing of the players, issues, tensions, and options that was both nuanced and informative. The paper opens a window onto what has occurred, and how to map the future.
As the paper provides context for the reader, it simultaneously serves as an excellent literature review, though its contributions extend far beyond that. The early pages offer a valuable snapshot of the intellectual overlays on global tax debates and point the reader to useful additional resources for exploring those arguments in further detail. Having observed the mix of high level and technical examinations of global tax debates, the paper intentionally seeks to “bridge a gap both by synthesizing the different proposals for the way forward…and by connecting them with the debate as it has unfolded.” (P. 11-12.)
For those looking to understand what has been going on in international tax over the past few years, this paper will bring you up to speed in a manner that foregrounds the complexity and messiness of the issues at stake. And for those already immersed in the turmoil of international tax, Heitmüller’s perspective and analysis will help prod your own thinking. Building on the work of other scholars, the paper constructs a frame that emphasizes the tensions among three goals: full participation by the Global South and Global North, agreement on how global tax policy should be made, and accord on the top substantive priorities in global tax reform. As Heitmüller observes, one possibility is to imagine drafting a convention that supports all three by thinking of it “as an instrument for pluralilateral rather than universal cooperation.” (P. 29.)
From here, Heitmüller launches into an examination of rationales and tradeoffs for three scenarios (hence the paper’s title): (1) a focus on institutional deficits in global tax governance, (2) a focus on a South-South cooperation, or (3) a focus on new and consensual topics. Which, if any, versions of the three paths might be embraced remains a question for the future. But as Heitmüller concludes, these dominant pressure points may themselves be joined by other “contentious issue[s]” including that of funding global tax work. (P. 11.) More optimistically, though, he suggests that engagement on any of the three scenarios has the capacity to “incrementally lead to a more inclusive and stable international tax regime complex.” (P. 33.) Whether or not readers’ share Heitmüller’s predictions or degree of optimism, “Scenarios for Negotiating” guarantees readers a richer understanding of the many competing threads underlying contemporary global tax policy debates.
Mar 25, 2025 Adam Thimmesch
The immense wealth being accumulated by U.S. technology companies and their owners has been apparent for some time, and events during and since the last presidential election have put this reality firmly in the spotlight. Wealth is power, and innovative data practices have allowed for a great concentration of that power among a few key companies and individuals. In Valuing Social Data, Amanda Parsons and Salomé Viljoen provide a timely analysis of this new market reality and help us to think about how our legal systems might better respond. Their article is timely and incredibly useful both for those new to thinking about the data economy and for those looking for new frameworks to address wealth and power disparities in modern society.
Parsons and Viljoen’s article is situated within a broader literature addressing the challenges created by the collection, use, and sale of data in today’s world. Companies operating in this new economy have been able to obtain powerful market positions both through their innovation and by operating outside the scope of existing regulatory regimes—tax systems included. Parsons and Viljoen explain that issue and provide useful terms and taxonomies to better understand and discuss potential responses.
One thing that the authors do particularly well is to demonstrate how tropes like “data is the new oil” fail to reflect the unique attributes and potential harms of data. Data is a valuable commodity largely because those who collect it can combine and analyze it in connection with other data, allowing informed inferences about groups of people. The authors use the term “social data” to refer to this aspect of the data economy.
Defining “social data” is necessary to their analysis, but it is largely instrumental toward a better understanding of how that data is valuable. When we think of value in the tax context, we often discuss exchange value, or the value of an asset in a market exchange. But value can, of course, mean other things. For example, value can also be discussed in ethical or sociological terms. What do we value? What values do we hold?
Parsons and Viljoen introduce these distinctions before specifically focusing on what they call “prediction value,” which is the value derived from the ability to predict future behavior. For example, by tying together purchase history, location information, and medical history, a company may be able to predict a consumer’s preferences or needs in ways that offer the company a competitive advantage. And companies may also be able to predict shifts in group behavior or desires as well, providing them with even greater market opportunities and other sources of power.
Having introduced the concept of prediction value, Parsons and Viljoen then outline three common “scripts” that companies use to extract the prediction value of social data. The first two scripts involve actions that are the type most discussed in the tax literature—selling targeted advertising and generating new revenue streams through product development and innovation. Those scripts transform prediction value into exchange value and provide monetary wealth to the companies using them.
The third script is slightly different, though, and provides the foundation for what, to me, were the most thought-provoking aspects of their article. That final script involves companies using data to cultivate and retain market power rather than to generate current cash flow. For instance, the third script could include the adoption of “strategies of innovation focused on rentiership” or the “use [of] the power cultivated via prediction value to evade or influence regulation.” (Pp. 1037-38.) Parsons and Viljoen argue persuasively that this unique script merits consideration separate from discussions about the power represented by exchange value and monetary wealth.
The foundation of Parson and Viljoen’s article is in providing these useful lenses through which to think more carefully about the data economy, and their article does so very well. The article’s observations regarding the third “script” also invite creative thinking about whether and how our legal systems can or should respond to the distinct issues created by the accumulation and non-market-exchange uses of power by those who possess social data. The final part of Valuing Social Data starts that process.
Specifically, the authors explore how prediction value “collides” with existing legal systems. Looking at the tax system and related literature, Parsons and Viljoen discuss how a focus on exchange value has led to gaps in how scholars think about taxing the digital economy. In particular, scholars and policy makers in the U.S. and abroad have struggled with how to apply existing taxes in situations where data are not directly monetized. (Consider, for example, the barter exchange of one’s data for access to online services.) Global conversations about the proper allocation of taxing power in the digital economy have similarly been impacted by the space that exists between prediction value and exchange value. Parsons and Viljoen invite new approaches informed by this disconnect, including more fundamental adaptations like taxing data collection itself rather than trying to modify existing tax instruments to fit this new market.
A final aspect of Valuing Social Data that makes it particularly compelling to readers is that their analysis is not specific to tax. The authors use tax as an example of where a better appreciation of social data and of prediction value might help to facilitate needed reform, but they also discuss data and privacy regulation, demonstrating how tax issues both mirror and interact with issues faced by multiple legacy legal systems. The failure of existing legal structures to adapt to prediction value has had widespread consequences, and Parsons and Viljoen provide us with useful tools for thinking about how to respond and for thinking about the interaction between tax and broader social movements.
Jan 23, 2025 Charlene D. Luke
Emily Cauble explores the extent to which the tax system allows taxpayers “to benefit from hindsight” in her article, Taxpayers’ Tax Election Regrets. Cauble uses concrete tax election examples to categorize the types of hindsight that cause taxpayers regret and to offer recommendations on how the tax system should approach hindsight to “bring more coherence to tax law’s approach and better align its approach with underlying policy goals.”
Cauble’s focus is on explicit, rather than implicit, tax elections; thus, the focus is on elections that require a formal indication of choice to the IRS. Cauble further considers the availability of filing a late election, revoking an election, and filing a protective election. Cauble analyzes formal election processes to highlight when an election-related decision may bring a taxpayer regret and when a taxpayer is able to use hindsight to make an adjustment to the original choice. The article concludes with recommendations for improvements to how the tax system allows hindsight, with the recommendations guided by tax policy goals relating to revenue-raising, fairness, and administrability.
Cauble describes four types of hindsight that arise in the context of tax elections and then groups them into two pairs, one pair that is generally benign or even enhances the fairness of the tax system and one pair that is generally harmful to the tax system.
Taxpayers who experience regret over their elections because they made a mistake of tax law (“Mistake of Tax Law Hindsight”) or failed to account for a fact that was knowable at the time of the election (“Mistake of Knowable Fact Hindsight”) are often afforded greater opportunity to benefit from hindsight under existing law and, Cauble argues, should generally be able to benefit when underlying tax policy is considered.
Conversely, taxpayers who experience regret over their elections because they failed to predict future facts correctly (“Misprediction of Fact Hindsight”) or because they failed to predict the IRS response (“Misprediction of Service Challenge Hindsight”) generally have less opportunity to benefit from hindsight under existing law and should have less opportunity.
Cauble uses multiple concrete examples to illustrate the current operation of these hindsight types and to recommend adjustments. One example involves elections under § 754. Under this Code section, partnerships make an election that will require tax basis adjustments relating to both the purchase of partnership interests and to partnership distributions.
A § 754 election is revocable only with government permission, so the partnership must predict the impact of the election on future taxable years when deciding whether to make the election. At the same time, a partnership generally has the information needed to determine whether making the election provides a net benefit for the first taxable year it is in effect. Thus, as Cauble highlights, § 754 elections are partly forward-looking because they are difficult to revoke and affect future taxable years (thus, requiring prediction of facts), but § 754 elections are also partly backward-looking as the partnership can know whether it will provide a benefit during the first year to which it would apply.
Hindsight could arise in the context of a § 754 election in at least two situations: a partnership could fail to make the election and then want permission to file it late, or a partnership could file the election and then seek to revoke it. Cauble analyzes both situations to highlight that Treasury Regulations and IRS letter ruling practice generally allow taxpayers to use Mistake of Tax Law Hindsight and Mistake of Knowable Fact Hindsight but usually prohibit the other two types of hindsight. As an example of Mistake of Law Hindsight, Cauble points to a 2021 letter ruling providing an extension to file a § 754 election because the taxpayer’s advisor failed to provide information about the availability of the election. As an example of Mistake of Knowable Fact Hindsight, Cauble describes a letter ruling granting an extension because the partnership did not know that a particular partner had died.
Cauble argues persuasively that these two types of hindsight should generally be permitted as “the taxpayer merely obtains the same beneficial tax treatment that a well-advised taxpayer could have obtained without the use of hindsight.” She recognizes that tax revenue could be lost as a result of allowing these two types of hindsight but also points out that lawmakers presumably intended to afford all eligible taxpayers access to the election. In addition, she argues that any tax revenue treated as lost could be “recouped in fairer ways” as a taxpayer using these two types of hindsight is “simply obtaining the tame tax outcome available to well-advised taxpayers.”
In contrast, the tax agencies generally limit the ability to use Misprediction of Fact Hindsight or Misprediction of Service Challenge Hindsight. For example, the § 754 regulations make clear that taxpayers who simply failed to predict facts, such as asset values, correctly will not obtain the benefit of revocation. This approach helps preserve tax revenue and also provides a fairer approach when taxpayers know the facts and have access to sophisticated advice but fail to correctly predict the future.
Cauble further argues persuasively that taxpayers could disguise the use of Misprediction of Fact Hindsight through offering explanations grounded in Mistake of Law Hindsight. In the § 754 context, Cauble notes that the IRS often states in letter rulings involving late election relief “that the partners had contractually agreed to make the election” as evidence that a procedural mistake occurred, rather than a misprediction of fact. Cauble posits that this shows insufficient skepticism as the IRS would never have reason to see these agreements as to partnerships that decide not to make the election. Cauble further asserts that the IRS should exercise greater scrutiny if there was even the “potential for the facts to change in a way that would affect whether the election was advantageous.”
This brief review of Cauble’s article only focused on one example—§ 754 elections—but Cauble explores many other interesting examples (such as the § 83(b) election and the § 475(f) mark-to-market election), and those descriptions encourage the reader to develop their own examples. Cauble shows how the tax law responds in the context of elections to taxpayer regret caused by hindsight. As a result, not only does Cauble’s article provide a comprehensive and engaging window into what could otherwise seem a somewhat dry procedural issue, her article could be used as a roadmap for developing future research and insight into how the tax system should react to taxpayers’ regret over tax decision making.
Dec 5, 2024 Leigh Osofsky
Daniel Shaviro,
Ten Observations about Income Inequality (June 20, 2024), available at
SSRN.
With the United States’s electoral season in high-swing, income inequality is sure to be a hot topic not only in academic circles, but also on the political stage. In his recent article, Ten Observations About Income Inequality, Dan Shaviro uses his trademark incisive style to pack some important insights into a quick read. For those who have thought a lot about income inequality, as well as for those who haven’t, it’s definitely worth taking a look at Shaviro’s new draft article.
Observers of the recent, important discussions regarding income inequality know that there is an empirical debate about how much income inequality in the United States has changed in recent decades. Thomas Piketty, Emmanuel Saez, and Gabriel Zucman have famously used U.S. tax returns to identify great increases in income inequality in recent decades, resulting in a concentration of income in the top 1%. However, recent work by Gerald Auten and David Splinter (which was later disputed by, among others, Piketty, Saez, and Zucman) argues that high-end income inequality is actually lower than we previously thought, and that government transfers and tax progressivity have yielded real rises in income for all income groups.
Shaviro’s article takes a step back from this empirical debate to probe what we mean when we talk about income inequality. For instance, Shaviro notes that attempts to offer one, discrete measure of inequality (for instance, through the Gini coefficient) fail to capture different types of inequality or explore why we should care about some types of inequality versus others. Very disproportionate income by the highest income individuals (whether the top 1%, or some other grouping) might pose particular problems in terms of control of the political system and threats to democracy. On the other hand, there are good reasons we might care in particular about the income of the least well-off. Perseverating about income inequality at the high-end would fail to capture these concerns.
Shaviro also notes that conventional economic approaches to inequality may fail to capture important realities of how people actually experience inequality. In this regard, the traditional economic concept of declining marginal utility of income is supposed to explain why we might want to take from people who have more and redistribute to people who have less: declining marginal utility of income suggests that those with lower income will value the income to a greater extent. But, as Shaviro observes, the sterile theory of declining marginal utility of income fails to account for interpersonal realities, like the high social costs of others having more than you. Oftentimes, these concepts would move in the same direction. But the concept of declining marginal utility of income doesn’t capture the irrational pain that people experience when they end up with slightly less than others they compare themselves to, even if they have relatively high income. What this means in terms of policy prescriptions is not always clear—but it does underscore that bare facts about inequality can only start a conversation about how income differences affect society. Likewise, Shaviro identifies important, practical considerations—like sharing within families, and changes in income over time, that make much more complicated attempts to measure income inequality across a society.
Perhaps the observation of Shaviro’s that I found most compelling was how general discussions of income inequality often fail to examine the extent to which mobility is part of the story. Shaviro suggests that we should probably feel differently about a society that has high income inequality, but high likelihood of mobility relative to income group at birth, relative to a society that has income inequality paired with little to no mobility. Building on this insight, we should probably feel even worse about a combination of high income inequality and low economic mobility if the income inequality and lack of mobility correlates greatly with immutable characteristics such as race. The nature of the problem here would not just be economic, but rather deeply social and political.
At bottom, Shaviro’s article, while short, manages to push readers to think deeply about what, exactly, the problem is with income inequality. As Shaviro acknowledges at the end of the piece, there certainly is not only one answer to this question. And many have engaged with it through many different lenses over the years. Shaviro’s take is worth a read both because it helpfully summarizes important considerations from this discussion (like interpersonal realities) and because it crystalizes others that have received less attention (like how the prospect of mobility should affect how we feel about inequality). As a result, Shaviro’s short piece is both a useful primer for newcomers to this important topic, as well as engaging read for careful students of it.
Nov 8, 2024 Charlotte Crane
Alex Zhang,
Fiscal Citizenship and Taxpayer Privacy, __
Colum. L. Rev. __ (forthcoming 2025), available at
SSRN (April 2, 2024).
In Fiscal Citizenship and Taxpayer Privacy, forthcoming in the Columbia Law Review, Alex Zhang explores ways of thinking about the effects of the disclosure of individual income tax returns. Disclosure of information about individual tax liabilities is one of those topics that won’t ever go away. Even if no imaginable contemporary Congress would reinstate a requirement that information about individual tax liabilities be publicly available, it is well worth thinking about the circumstances in which disclosure would be justified. After all, most state property tax systems include disclosure not just of the values subject to tax, but of taxpayer compliance. And, as Zhang describes, such disclosure was on more than one occasion a part of the administration of the federal income tax. Especially in light of this history, it is worth exploring whether an income tax—especially the individual income tax—should be so different.
The consensus answer seems to be that the intrusion on individual taxpayer privacy cannot be justified by the possibility of enhanced compliance, especially when research indicates that the impact of disclosure on compliance is ambiguous. Zhang’s critique of this response rests on the idea that increased knowledge of the way taxpayers—especially wealthy taxpayers—interact with the income tax system is the key to a more democratic and egalitarian tax system and therefore a more democratic and egalitarian fiscal polity.
Zhang’s succinct historical account of the various measures the federal government has used to raise tax revenue from individuals and the information requirements related to these measures should help his readers reframe their approaches to the administration of federal tax laws more generally. For instance, the idea that the pre-tax distribution is not sacrosanct but instead that the government may be entitled to a share in exchange for the provision of security and stable markets provides justification not just for progressive taxation but also for a more transparent approach to tax administration. Although this proposition is hardly original with Zhang, his historical examination further reveals that this transparency with respect to taxpayer behavior has in the past been recognized to be important to the evolution of tax policy.
Zhang posits that taxpayers and the information required to assess their income tax liabilities potentially affect the fiscal polity in four important ways: first, because of the information made available in the process of preparing and filing returns; second, because of the extent to which taxpayers become stakeholders in the economy supported by the tax system; third, because of the role of taxpayers in the economy more generally; fourth, because the decisions of many individual taxpayers combine in a way that amounts to an delegation by Congress to taxpayers in the interpretation of the tax law.
With respect to most of these interactions, requiring disclosure of tax information about very wealthy taxpayers is likely to be less objectionable than requiring disclosure of taxpayers of lesser means. First, there is likely to already be more public information about wealthy taxpayers, and so disclosure of their tax situations may involve less threat to personal autonomy than disclosure of the situations of others. Second, disclosure of information about wealthy taxpayers is more likely to affect the general public’s perceptions of the fairness of tax base design and tax enforcement. Third, disclosure of the government benefits delivered to wealthy taxpayers through the tax system is far less likely to involve dignitary harm than disclosure of the benefits to lower income taxpayers. The benefits provided to wealthy taxpayers are far more likely to have been inducements to engage in desired behaviors. These inducements should be viewed as investments in partnerships by the government—that is by the public. The public is therefore entitled to information about how its investment has performed. And fourth, the interpretive discretion afforded to very wealthy taxpayers is far greater than that afforded to others.
One of the most significant take-aways from Zhang’s analysis is a strong sense of the contingent nature of any taxpayer’s claims to the income subject to tax, and to any claim of privacy with respect to the information involved in the application of that tax. Contrary to what may be a common perception, the claims to privacy of the very wealthy taxpayers are likely to be weaker than the privacy claims of taxpayers of lesser means.
Oct 7, 2024 Miranda Stewart
Sometimes a book arrives at just the right moment in history. That is the case for The United Nations in Global Tax Coordination by Dr. Nikki J. Teo, which tells the story of the United Nations (UN) Fiscal Commission, a short-lived attempt in the mid-20th century to create an international tax process that would reflect and support the interests of developing countries. The product of years of doctoral research, the book was published just before the UN General Assembly adopted Resolution 78/230 (22 December 2023) to establish a new UN process for international tax cooperation. It has deservedly won the 2024 IBFD Frans Vanistandael Award for a publication in international taxation.
The United Nations in Global Tax Coordination is a work of substance about tax cooperation at the UN and before it, the work of the Fiscal Committee of the League of Nations. Teo explores the growth and decline of the UN Fiscal Commission at a time that saw a growing divide between “developed” and “developing” countries. She draws on archives of the UN, the League, and British and US governments to tell an intriguing story of shifting geopolitical, economic, and business alliances during the second world war, and Cold War gameplaying.
As Teo observes, the work of the UN Fiscal Commission is less well known than the “origin” story of international tax coordination at the League’s Fiscal Committee, which included the 1923 Four Economists Report, the first major study of international double taxation. This was followed by the drafting of Model tax conventions and many detailed reports on international tax led by US lawyer Mitchell B Carroll in the 1930s. Despite its significant work, the Committee failed to reach agreement before its dissolution in 1948, instead producing two conflicting Model tax conventions, the pro-source country 1943 Mexico Model and the pro-residence country 1946 London Model.
In its final communications, the League’s Fiscal Committee urged the UN to establish a replacement tax forum that could reach a consensus agreement, ideally comprising “a balanced group of tax administrators and experts from both capital-importing and capital-exporting countries and from economically advanced and less-advanced countries.” (P. 1.) This goal was not achieved during the brief life from 1946 to 1954 of the UN Fiscal Commission. Instead, the Commission was made up of representatives of countries who soon aligned along regional and cold war lines. In the end, the capital-exporting countries, especially the US and the UK, succeeded in shifting the locus of negotiations out of the UN altogether, to be taken up by the Organisation for European Economic Cooperation, later the Organisation for Economic Cooperation and Development (OECD), which became the dominant player in international tax.
Teo’s book is rich in detail and I provide just a few highlights here. First, it is interesting to learn more about the Mexico Model and its strong pro-source country stance. The Model was a product of agreement among countries in Latin America, with some other capital-importing countries, during the 1930s, with the apparently short-lived support of the US which initially adopted a pro-economic development posture in the region. Even this may have been achieved only because other capital-exporting countries, and later the US, were distracted by war raging in Europe and the Asia Pacific. US academic institutions, especially Princeton (predating Harvard’s involvement in tax and development from the 1950s) were initially engaged with the negotiation of the Mexico Model. However, it was not long before US businesses, whose interests were largely represented (Teo suggests) by Mitchell B Carroll, expressed concerns about high source country taxation on cross-border investment.
Second, Teo shows the importance of key individuals operating in an institutional system, with a helpful cast of characters in appendix 1 of the book. We see here, as in other international tax literature, the tireless presence of Carroll. As well as authoring many reports on international tax for the League’s Fiscal Committee, Carroll was one of the founders of the International Fiscal Association. Despite his global outlook, Carroll was a strong advocate of US interests in these forums and he seems to have been influential in the rise and fall of the UN Fiscal Commission. Less well known is Paul Deperon, a member of the League Secretariat from 1931, Secretary to the 1943 Mexico Regional meeting, and Director of the UN Fiscal Division from 1946-1948. Deperon worked hard to promote the credibility of the League and UN fiscal committees, while providing continuity to support the UN Commission’s work. Teo describes some of the challenges of working in the nascent bureaucracy of the UN, which was poorly resourced and often haphazard in its organisation.
Third, Teo shows how the residence-source debate developed in the UN Fiscal Commission through a focus on residence country relief of double taxation through an exemption or credit method. This grew out of a more specific debate about source taxation of the rapidly growing aviation sector that engaged the International Civil Aviation Organisation, which was dominated by the US. A group of countries including Chile, Pakistan, and India called for the exemption of foreign source income by capital-exporting countries to remove a barrier to foreign direct investment, referencing a report, Measures for the Development of Under-Developed Countries (1951) produced by the Economic and Social Council of the UN (ECOSOC). Agreement could not be reached and from this time onwards, international tax negotiations became embedded in a developed-developing country divide. This early ECOSOC report on encouraging foreign investment became part of the broader framework of economic development that would come to dominate the UN approach up to and including today’s Financing for Development process for achieving the 2030 Sustainable Development Goal Agenda.
Fourth, Teo shows how the UK and US, with other capital-exporting countries and supported by the International Chamber of Commerce representing business interests, terminated the UN Fiscal Commission on the basis it was no longer “useful”. By the end of its life, the Commission could accomplish little but “rubber stamp” the US-approved work done by the UN bureaucrats, while the ongoing debate about double tax relief was “suffused with underlying political tensions and alliances.” (P. 336.) Capital exporting countries ultimately determined that the source tax position and exemption method was against their interests, although this took some time to be settled, as Fiscal Commission negotiations were complicated by cold war politics and influence of the Soviet bloc.
Teo’s book is powerfully relevant today, as we continue to observe deep tensions between capital exporting and capital importing jurisdictions. The majority of OECD member states voted against the Resolution for a new and inclusive tax negotiating framework at the UN last year. Yet work is proceeding, and the UN Ad Hoc Committee on 16 August voted on the terms of reference for the convention that will now go to the General Assembly for consideration by the end of 2024. The Committee voted overwhelmingly in favour of the terms of reference. Most European Union countries abstained, while only eight countries voted no (Australia, Canada, Israel, Japan, New Zealand, Republic of Korea, the UK and the US). It is disappointing to see these democracies vote against a UN framework convention, and we must hope for a change in approach. Developed countries must not miss the opportunity to build positively on previous cooperative efforts led by the OECD and to help to establish the beginnings of a truly inclusive UN tax forum. Meanwhile, we can all learn from Teo’s book in negotiating, observing, and critiquing the latest developments.
Sep 9, 2024 Emily Satterthwaite
Goldburn Maynard & Clint Wallace,
Penalizing Precarity, 123
Mich. L. Rev. __ (forthcoming, 2024), available at
SSRN (March 28, 2024).
Those who are committed to strengthening safety nets for economically precarious workers at modest revenue cost should look no further than Goldburn Maynard and Clint Wallace’s paper on hardship-related early withdrawals by employees from their 401(k)/403(b) qualified retirement plans. Employees who need to make an early withdrawal due to hardship are, by definition, encountering difficulties and have lower ability to pay. Nonetheless, as Maynard and Wallace describe, a subset of hardship distributees may be surprised by a mismatch in the law that can heap further hardship upon them in the form of penalties.
The mismatch occurs between two sets of rules: first, the “hardship distribution” rules addressed to qualified plans under Code subsection 401(k), which allow a plan administrator to permit withdrawals before the employee reaches retirement age and, second, the rules addressed to taxpayers under Code subsection 72(t), which apply a 10 percent “early withdrawal” penalty. The regulations under 401(k) list various safe harbored-payments that constitute an allowable hardship distribution in response to “immediate and heavy financial need” that cannot be satisfied using other resources. (Pp. 3-4.) These payments include those for medical care that would be deductible under Code subsection 213(d), costs related to the purchase of a home for the employee, tuition expenses for post-secondary education, as well as payments to prevent eviction or foreclosure, for funeral expenses, and for a natural disaster or casualty loss. (Pp. 3-4, 26.) However, those same safe harbored-payments are not fully mirrored in the subsection 72(t) penalty framework, which contains a divergent list that doesn’t include eviction and foreclosure, limits qualifying medical care expenses, and allows payment for post-secondary educational expenses only in the case of individual retirement account holders, not those who have 401(k)/403(b) qualified plans. (Pp. 30-31.) As a result, some hardship distributees fall between the cracks: “[d]espite qualifying for the hardship distribution safe harbor, [they can avail themselves of] no exception to this separate penalty…” (P. 4.)
This mismatch might seem like a minor issue likely to affect few employees, but those who are affected constitute a group that has revealed itself to be struggling to make ends meet. Maynard and Wallace cite 2019 IRS and GAO studies documenting that, among the 1.7 million who received about $17 billion in hardship distributions, there is a higher likelihood of having total retirement assets of $5,000 or less, being low-income or somewhat low-income, being African American or Hispanic (i.e., not “White, Asian or Other”), being less-educated, having a larger family, and being widowed, divorced or separated. (Pp. 23-24.) Of this group, a whopping 1.2 million paid the 10 percent penalty (P. 23); those who are penalized are “poorer and nonwhite taxpayers who have the smallest account balances.” (P. 6.) For those ensnared by the mismatch, the penalty is almost guaranteed to exacerbate financial precarity. As Maynard and Wallace write, “the taxpayers who fall into the gap between hardship distribution rules and early withdrawal penalties constitute the most vulnerable account holders.” (P. 25.)
One of the aspects of the paper that makes it so engaging is its profile of a mother of three called Tiffany (all names in the paper were changed to protect privacy), who was assisted by the Low Income Taxpayer Clinic at South Carolina Law (round of applause to Clint and each LITC law school!). Tiffany needed funds because she “had fallen behind on her housing payments and was facing eviction; the withdrawal was necessary to keep her and her three young children from becoming homeless.” (P. 3.) Luckily, Tiffany’s plan permitted hardship distributions (bafflingly, plan administrators are not required to offer them). (P. 27.) Tiffany was permitted to make an early withdrawal from her employer’s 401(k) plan in accordance with the hardship distribution rules that contain the eviction safe harbor. But she wasn’t told that the same rules didn’t apply to the 10 percent penalty, or that eviction payments were not covered. Thus, Tiffany found out at tax time that she was responsible for a 10 percent penalty on her early withdrawal.
Maynard and Wallace point out that the application of the 10 percent penalty in cases like Tiffany’s fails to advance the dual policy goals identified in the penalty provision’s legislative history. (Pp. 4-5.) First, the penalty is supposed to function as a commitment device to prevent employees from shortsightedly draining their retirement savings. (P. 37.) However, it could not work as a deterrent in this regard for Tiffany: she gained knowledge of the penalty only after taking the action that triggered it, and was operating under the impression that she was not subject to the penalty because of her hardship situation. Second, the penalty is designed to recapture tax benefits that employees had reaped from having their savings grow tax-free in the qualified plan. (Pp. 4-5.) But because a low-income employee like Tiffany would likely be subject to the statutory zero percent rate on long-term capital gains, the penalty put Tiffany in a worse position than if she had forgone the use of her 401(k) entirely (Maynard and Wallace walk through an enlightening numerical example specific to low-bracket taxpayers). (Pp. 24-25.) The only thing it accomplished was raising a small amount of revenue from someone who could ill-afford to pay and understandably might feel misled by the mismatch.
Maynard and Wallace make a strong case that the IRS and Treasury, without any action by Congress, should improve communication, including using better vocabulary, about these two closely-related sets of rules. (Pp. 10-11, 39-40.) They argue that the use of clearer language would help employees understand that receiving approval for a hardship withdrawal is insufficient for waiving the penalty. On the legislative front, they propose a detailed set of reforms, two of which I’ll highlight. First, they recommend adopting a default income tax withholding obligation for plan administrators to avoid saddling employees with surprise tax bills. Second, they propose harmonizing the hardship withdrawal and penalty rules so that the same criteria that permit a plan administrator to make a hardship distribution could waive the early withdrawal penalty. (P. 36.) They point out that this has been accomplished to some extent by SECURE Act 2.0’s adoption of a $1,000 penalty-free hardship withdrawal provision (see recently-released Notice here), but Maynard and Wallace take issue with the meagre permitted amount.
As a supplement to this for the most vulnerable employees, they propose a resource-based waiver of the early withdrawal penalty in the case of a hardship distribution; their preferred approach is to offer a penalty waiver to those with lower total retirement assets. Here, the tricky part is defining what that means and addressing the discontinuity in treatment implied by a bright-line threshold. Moreover, they acknowledge that “this [resource-based waiver] approach might curtail the commitment device effect of the penalty for some.” (P. 37.) In not advocating for the abolition of the penalty in the case of all hardship withdrawals, the authors seem to endorse the commitment function of the penalty, even in the case of hardship, for better-resourced employees. However, they argue, eliminating the hardship withdrawal penalty for under-resourced employees may augment the propensity of this population to use the qualified plan vehicle for retirement savings “by giving some employees comfort that they can make contributions without later suffering consequences of depositing funds in an account [that is] out of reach in case of emergency.” (P. 37.) This is ultimately an empirical question and it would be fascinating to test this via an experiment or other study.
The article concludes by linking the maladies of the qualified plan hardship distribution regime with the larger themes of complexity, uncertainty, and unworkability in U.S. retirement saving policy for those with lower incomes. As the authors point out: “401(k) plans have been designed with an expectation that individuals can make and stick with long-term commitments, consider the time value of money, evaluate different investment options, and shoulder the burden of significant uncertainty about their investment decisions and their future preferences—all dubious expectations in the real world.” (P. 19.) Few will come away from this work unconvinced that low-income employees, and particularly those who are experiencing hardship, are poorly-served by the status quo retirement savings system.
Jul 30, 2024 Adam Rosenzweig
Rebecca M. Kysar,
The Global Tax Deal and the New International Economic Governance, __
N.Y.U. Tax L. Rev. __ (forthcoming), available at
SSRN (May 16, 2024).
In 1944 forty-four nations signed an agreement in Bretton Woods, New Hampshire, which laid the foundation for what would become the modern international economic system. The so-called Bretton Woods system was built on the commitments to free and open trade, stable monetary exchange markets, and investments in global public goods. One of the motivating factors underlying the Bretton Woods agreement was to prevent the kind of trade protectionism, isolationism, and hyperinflation that had been seen as some of the geopolitical factors ultimately leading to World War II. While the Bretton Woods agreement itself only lasted until 1971, the commitment to liberalized trade, liquid currency markets, and investments in global public goods continued and came to be known collectively as the “Washington Consensus.”
In recent years, however, cracks have begun to emerge in the Washington Consensus under the stress of the Financial Crisis, the COVID pandemic, and increased protectionism and trade wars. At the same time, the Organization for Economic Cooperation and Development (OECD) began the single most significant overhaul of the global tax regime since its inception through its Base Erosion and Profit Shifting (BEPS) project. Over one hundred and forty countries eventually reached near universal agreement on fifteen separate Action Items fundamentally overhauling the international tax regime. This success stands in stark contrast to the otherwise perceived crumbling of the Washington Consensus. Was this merely another notable example of tax exceptionalism? Or could the success of BEPS serve as a model for revitalizing the Washington Consensus?
Professor Rebecca M. Kysar intervenes in this debate in her new article, The Global Tax Deal and the New International Economic Governance. The underlying premise of the article provides that the success of the BEPS negotiations proves the demise of the Washington Consensus, not its survival.
On its face this might come across as a surprising, if not controversial, claim. After all, despite their faults the World Bank, IMF, etc. remain the backbone of the modern international economy and the US dollar remains the world’s reserve currency, etc. Yet the article convincingly proclaims the end of the Washington Consensus by situating the question within the context of broader global macroeconomic and geopolitical trends, in particular a clearly emerging commitment throughout the global community to a more equitable distribution of the benefits of any new global economic order. To this end, Kysar defines a number of features of this new order as contrasted with the Washington Consensus, briefly summarized as follows: (1) replacing the unwavering commitment to open markets and free trade with a general distrust of markets and stronger preference for state regulation, (2) expanding beyond trade and economic liberalization to incorporate global distributional considerations as a core policy goal, and (3) relaxing the commitment to one-size-fits-all global institutions to allow for more regional cooperation and adoption of non-reciprocal duties and benefits.
Ultimately the most powerful impact of the article even by its own terms doesn’t lie in the persuasive power of any of its details but rather in its broader claim that such details are growing almost anachronistic because the global community has already moved past the fundamental tradeoff between efficiency and equity underlying the Washington Consensus. More specifically, to date (for the most part) equitable considerations have routinely lost to efficiency considerations whether framed as open markets, free trade, capital neutrality, or other forms. As a result, calls for equitable proposals have not only failed to gain traction in the face of this “thumb on the scale” for efficiency but worse too often have been dismissed as “payoffs” to “bad” actors precisely because they depart from the efficiency baseline of the Washington Consensus. For this reason, the core thesis of the article that equitable and distributional considerations can no longer be considered departures from the consensus efficiency baseline but rather co-equal components of that baseline proves far more radical than may appear to many at first glance. Without fear of hyperbole, perhaps no other scholar could be better suited to undertake such a profound paradigm shift. Not only is Professor Kysar a widely published and influential expert in the field, but as noted in the article she co-led global tax negotiations for the United States from 2020 through 2021. From this combined perspective, the article does not merely serve as a form of oral history, on the one hand, or a purely theoretical model, on the other, but rather a combination of the best of both worlds—to powerful effect.
Of course, this does not mean there are no details or specifics over which reasonable people could disagree. In particular, some might not buy the contention that the emergence of the Washington Consensus strongly parallels the themes emerging out of the BEPS negotiations. After all, the Bretton-Woods conference explicitly centered on the creation of a wholly new post-War economic system while the BEPS negotiations by their own terms were meant to shore up that same system. Of course, the US Constitutional Convention was similarly convened only to amend the Articles of Confederation yet there can be little doubt an entirely new structure of government was embodied in the Constitution that emerged at its conclusion. It is possible others may doubt the extent of similarity between the international tax system and the international trade system, especially given the pervasiveness of so-called “tax exceptionalism” within those systems themselves which has kept the two mostly distinct since their post-War emergence. Even the best of articles will include details that some could criticize or specific examples that could be nitpicked. But the article by its own terms recognizes this and attempts to avoid getting caught up in the quicksand of these debates by keeping its focus on the unique perspective of what has actually worked in the real world over the past decade. For this reason, perhaps the best compliment I can give to Kysar’s article is that it may not be the piece of scholarship any one of us may have wanted, but it assuredly is the piece of scholarship we all need.
Jul 3, 2024 Dorothy Brown
Professor Richard Winchester’s Essay, A Simple Tax Case Complicated by Race, is a very enlightening and quick read. His Essay details a Tax Court decision about whether a sale of land by a real estate developer is eligible for favorable tax treatment. And while most law students who have taken a single individual income tax class would rightly tell us the answer is no, Professor Winchester takes us through an opinion that finds otherwise—because of race! First, a primer for my non-tax-geek readers.
For most of our modern income tax history, the gain applicable to the sale of capital assets like stock or real estate held by investors, has been eligible for a low, preferential tax rate. Sales of inventory, or property “primarily for sale to customers” on the other hand are taxed at the highest ordinary income tax rates available. Real estate developers therefore are selling property they hold for sale to customers and generally ineligible for the lower, preferential tax rate. Except, Tax Court Judge Withey did not get the memo. Why? Professor Winchester argues that it is because of race.
The decision, Pontchartrain Park Homes, Inc. v. CIR, holds that the gain from the sale of real estate by a developer is eligible for the lower preferential tax rate—because the developer was doing something extra risky: building a subdivision of homes for sale to prospective black homebuyers during Jim Crow.
The story of how the development came to be is alone a valuable contribution to the literature. In 1950, a white Baton-Rouge based builder, Hamilton Crawford, along with the white mayor of New Orleans, deLesseps Story Morrison (the name alone deserves its own movie), agreed to build two communities: one white (Gentilly Woods) and one black (Pontchartrain Park) separated by a ditch. (Plessy v. Ferguson allowing “separate but equal” was still good law.) The purpose of Pontchartrain Park was to ease the housing shortage faced by black Americans and potentially prevent protests. (P. 38.) Financing for both were provided by the Federal Housing Administration (FHA). During this time FHA insurance generally flowed to developments that excluded black Americans. In this case an exception was made because of pressure applied by Mayor deLesseps Story Morrison on the FHA.
In 1951, Hamilton Crawford and a business partner bought the land. (P. 40.) By 1954, he teamed up with two New Orleans philanthropists to build Pontchartrain Park through a new company aptly called Pontchartrain Park Homes, Inc. (PPHI). Within a year, PPHI purchased the land from Crawford and his business partner, and construction soon started. By 1957, PPHI had completed installing improvements on about half the land, but it still had 188 unsold homesites. It took a pause and accepted an unsolicited offer from the state to buy seventeen acres of undeveloped land to build a satellite campus of Southern University, a Historically Black College and University. PPHI turned a profit of $154,019 on the sale and the issue was whether that profit was subject to the lower, preferential tax rate that applies to capital gains. The taxpayer claimed the lower preferential tax rate on their tax return and the Internal Revenue Service (IRS) disagreed. Tax court Judge Withey found for the taxpayer as did the Fifth Circuit on appeal albeit with a different analysis.
The Tax Court according to Professor Winchester (and any law student who took the introductory course) “incorrectly observ[ed] that raw land is generally a capital asset in the hands of a real estate developer.” (P. 41.) Professor Winchester notes that Judge Withey’s language describing how PPHI served “a market, the potentialities of which were a virtually unknown and untested factor in its experience or that of its incorporators,” meant in Winchester’s words that PPHI’s “customer base of Black buyers made it unique.” (P. 41.)
Because the development was for black homebuyers—something unheard of in the Jim Crow South—PPHI was not like the ordinary real estate developer who had a history of selling real estate to these customers. Their customer base was white. The market for white homebuyers was well established. Not so for the black homebuying market. Judge Withey concluded that any raw land was an investment when acquired by PPHI, making it a capital asset from the beginning. (P. 42.)
As Professor Winchester points out though, the facts do not support that conclusion. PPHI’s charter looked like “that of any other real estate developer.” (P. 42.) And “the company always classified its undeveloped land as ‘inventory’ in its books.” (P. 42.) The IRS naturally appealed and a three-judge panel of the U. S. Court of Appeals for the Fifth Circuit issued a per curiam opinion rejecting the Tax Court’s theory that the land was not primarily held for sale to customers when the company acquired it, but because PPHI’s purpose was changed substantially after acquisition, the Fifth Circuit concluded that it “was no longer held primarily for sale to customers” by the time the actual unsolicited offer to sell was received. The appellate court expressly rejected the Tax Court’s analysis that the land was an investment from the very beginning. (P. 43.)
Professor Winchester notes the role that race played in the Tax Court opinion. He argues that race made Tax Court Judge Withey interpret the law against precedent and in favor of the white developer’s company that was developing homes for sale to black Americans. Professor Winchester in effect describes the “market risk” discussed in the opinion as a dog whistle for race and notes how the Judge’s assumptions about black homeowners were the ultimate driving factor in his opinion. I might add that the Judge may have also seen PPHI as a sympathetic taxpayer, trying “to do the right thing” and therefore deserving of the capital gain tax break—a tax break that recent Treasury Department research shows is disproportionately received by white Americans.
Professor Winchester points to current research that shows a tendency for Americans to associate “homeownership with whiteness.” (P. 44.) (Perhaps Judge Withey associated eligibility for the low, preferential rate with whiteness as well.) Professor Winchester discusses research that the FHA’s bias against insuring homes owned by black Americans is replicated in today’s market even though that bias has long been made illegal under the 1968 Fair Housing Act. “[H]omes located in racially integrated areas receiv[e] substantially lower bank appraisals than the ones for comparable homes in all-white areas.” (P. 44.) As Professor Winchester points out, that has real substantive economic impact.
In case you think this case is old and cold, Professor Winchester notes how Judge Withey’s decision was cited in a 2018 IRS brief, where the government argued the sale by PPHI was of raw land treated as a capital asset because “the company was in the business of selling improved lots, as opposed to raw land.” Of course, as he notes, this comports with the Tax Court opinion but not the Fifth Circuit’s decision. As Professor Winchester observes, “Withey’s rationale in PPHI’s case has retained some persuasive power, despite the Fifth Circuit’s admonition.” (P. 46.)
Professor Winchester urges all judges to be aware of and sensitive to any implicit racial bias that might cloud their thinking. Otherwise, there may be more simple cases…“complicated by race.” (P. 47.)
Jun 7, 2024 Jon Choi
John R. Brooks & David Gamage,
The Original Meaning of the Sixteenth Amendment, __
Wash. Univ. L. Rev. __ (forthcoming), available at
SSRN (February 23, 2024).
The Sixteenth Amendment is one of the most thoroughly studied texts in U.S. federal tax law—economists, historians, and luminaries of constitutional law and taxation have all sliced and diced its meaning for more than a century. Making an original discovery about the historical meaning of the Amendment has consequently taken on the dimensions of a mythic quest, like discovering an Eleventh Commandment or the secret dryer compartment containing all those lost socks.
Remarkably, this is exactly what John R. Brooks and David Gamage accomplish in their timely forthcoming article, The Original Meaning of the Sixteenth Amendment. Brooks and Gamage marshal a wide variety of evidence, including new historical evidence on the technical meaning of “income,” to argue that the income taxable without apportionment under the Sixteenth Amendment includes unrealized gains. This has huge implications for policy, given that many current and proposed taxes are imposed on unrealized gains, including some of the most important recommendations to tax the very rich. Brooks and Gamage’s work is especially timely given that the Supreme Court will rule on Moore v. United States in the next month or so, possibly deciding the constitutionality of taxes on unrealized capital gains—although Brooks and Gamage’s contribution goes far beyond the current case, especially if it is decided on narrow grounds.
Brooks and Gamage’s article is remarkably thorough in its examination of the historical context and public meaning of the Sixteenth Amendment at the time of its ratification. They make two main contributions. First is a purposivist analysis of the meaning of the Sixteenth Amendment, arguing that it was understood as a specific measure to overrule Pollock v. Farmers’ Loan and Trust Co. and should be interpreted as such. Second, the authors present extensive contemporary textual evidence on the meaning of the term “income,” including evidence so far neglected in constitutional debates.
The article’s exposition of the purpose of the Sixteenth Amendment is thorough and compelling, although presumably less so to textualists (obviously an important interpretive bloc on the current Supreme Court). But the real coup de maître comes in the second contribution. Most significantly, the authors unearth new historical evidence showing that varieties of income taxation in effect at the time the Sixteenth Amendment was ratified included elements of “mark-to-market” taxation of unrealized gains. For example, they show that the federal Corporate Excise Tax of 1909 required including the appreciation in value of unsold property in income if it was recorded on a corporation’s books. They also show that accounting standards in place at the time of the Sixteenth Amendment included unrealized gains in income. Taken together, the evidence suggests that the contemporary technical meaning of “income” in the context of taxation did include unrealized gains.
Brooks and Gamage take a sophisticated interpretive position here, and they acknowledge doubters on the other side. Perhaps most prominently, a team of corpus linguists who have analyzed contemporary language usage at the time of the Sixteenth Amendment’s passage conclude that “income” was commonly understood to require realization. Brooks and Gamage have some points of disagreement with the corpus linguistic analysis. Moreover, they argue that it is beside the point—that the ordinary meaning of “income” is not relevant when we have good evidence of the technical meaning of “income,” which as used in the Sixteenth Amendment is a tax law term of art.
Constitutional and textual interpretation are subtle, and cases sufficiently ambiguous to make their way to the Supreme Court do not admit of easy answers. Slam dunk arguments on these matters are therefore almost impossible, and there are grounds on which reasonable interpreters could disagree. But Brooks and Gamage’s article is as persuasive and original as I have seen on these issues, and makes interpretive contributions that will resonate for decades to come.
